Documents/Pleadings

November 06, 2013

In general the KBO News report summarized it correctly, but there are some additional facts alleged here (in addition to more horrible details of what the police allegedly put him through). These are just the allegations in the complaint, remember, although according to KBO the medical records do confirm the plaintiff's allegations about the procedures done.

First, the complaint also alleges claims based on a different incident last year, when the plaintiff was stopped in his home county (Hidalgo) for having a cracked windshield. Because he "looked nervous," other officers were called and a drug-sniffing dog brought in. No drugs were found.

Second, the more recent stop in Luna County allegedly was quite a team event, involving officers from multiple jurisdictions and possibly a separate drug task force. According to the complaint, the officer who stopped the plaintiff hadn't actually seen the traffic violation, he got a call about it from another officer. Since the violation was failure to yield at a stop sign, why wouldn't the officer who saw it make the stop himself? We don't know yet.

Third, here are the facts that allegedly justified the warrant (still looking for the affidavit itself):

Eckert was ordered out of the car, and that's when the alleged butt-clenching was noticed. Specifically, it says the officers claimed his "posture was erect and he kept his legs together," which is not exactly the same thing. (Yes, I just tried it.)

At that point a sniffer dog was brought in—which turned out, oddly enough, to be the same dog from the 2012 stop. It supposedly "alerted" to the seat of Eckert's car.

The third piece of "evidence," apparently, was that officers from Hidalgo County—which is not where the stop took place—told the first group that Eckert was "known in Hidalgo County to insert drugs into his anal cavity." "Known" by whom? Learned how? How and why did these officers get involved in a traffic stop in a different county? All good questions.

The complaint also alleges that the affidavit was defective in other ways, saying for one thing that the law requires planned medical procedures to be specifically listed (it cites a 5th Circuit case and this would seem to follow from the Fourth Amendment's specificity requirement), and they weren't.

Fourth, the complaint alleges the plaintiff was held for 15 hours. The stop was sometime before 2 p.m., and he was not released until 5 a.m. the next day, after being probed for several of those hours.

Let's say police stop someone they know to be a major drug dealer, previously convicted, maybe even a "kingpin." As far as I know there is no evidence Eckert is such a person, nor do I think the officers believed he was, just because if I were a drug kingpin I sure as hell wouldn't be carrying the drugs in my butt. You hire someone else to do that. But let's say they stop someone who is a real bad guy. Or they even have a tip that he's got drugs in the car, and they've been trying to get him for years.

It wouldn't matter. The Constitution and laws have to apply regardless of who the defendant is or else they don't do the rest of us any good. And we don't know, maybe these cops just didn't like the guy. Maybe he's just the wrong race or likes the wrong sports team or slept with somebody's wife. Whatever the reason, they (allegedly) picked up a guy on a pretext and talked a couple of doctors into searching his bowels all night long. Think about that one for a few minutes, if you can stand it.

Then consider whether the "War on Drugs" and its even creepier pal the "War on Terror," which have consistently eroded the rules that are supposed to protect us from this kind of thing, are really worthwhile.

I know what I think, so I'll just be over here practicing how to stand upright in a very relaxed position.

Update: KOB News now says it has found another person with a very similar story: traffic stop, same dog, same medical center, similar probing, same result (nothing). Also, although searches with dogs are often tainted by signals the dogs get from their handlers, KOB says this particular dog has not been certified to sniff in New Mexico since 2011.

November 01, 2013

This excellent pleading has been making the rounds (I saw it here) over the last couple of days, but I couldn't find a signed copy and so I haven't posted it yet because of this ridiculous issue I have with verifying information. I was able to contact the author, who told me that yes, he had actually filed it. I asked him if he'd send me a copy of the pleading as it was filed, but either he has more important things to do (like maybe actually try cases) or has had enough publicity at this point. (He seemed a little shell-shocked, actually.) But this has been covered by a sufficient number of actual news outlets at this point that it seems pretty likely to be legit, so here it is.

It was prompted by the prosecution's one-page and citation-free motion in limine asking the court to order defendant's counsel "not to refer to the Assistant District Attorney General as 'the Government' during trial." The prosecution had come to believe, apparently, that this reference was being "used in a derogatory way" and wished to put a stop to that. It provided a helpful list of references that it said it would consider acceptable, including references to the AG herself as "General R______," something that for whatever reason I particularly loathe, whether or not it's technically correct.

The defense attorney—whose last name is in fact "Justice"—responded this way on the merits:

The State of Tennessee offers precisely zero legal authority for its rather nitpicky position, and the defense can find none. The Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff’s proposed ban on speech would violate the First Amendment.

That was probably enough to win (and he did win). But he drove the point home with the kind of thing that you probably only get away with if it's this good:

Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions.... First, the Defendant no longer wants to be called "the Defendant." This rather archaic term of art obviously has a fairly negative connotation.... At trial, Mr. P. hereby demands to be addressed only by his full name, preceded by the title "Mister."

Alternatively, he may be called simply "the Citizen Accused." This latter title sounds more respectable than the criminal "Defendant." The designation "That innocent man" would also be acceptable.

Moreover, defense counsel does not wish to be referred to as a "lawyer," or a "defense attorney." Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed innocent.

Alternatively, counsel would also accept the designation "Guardian of the Realm."

Further, the Citizen Accused humbly requests an appropriate military title for his own representative, to match that of the opposing counsel. Whenever addressed by name, the name "Captain Justice" will be appropriate. While less impressive than "General," still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.

Along these same lines, even the term "defense" does not sound very likeable. The whole idea of being defensive comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself "the Resistance."

* * *

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.

You don't get many chances to do this kind of thing, so it is nice to see someone hit it out of the park.

The pitch that resulted in this line drive was a letter from the township of West Orange, New Jersey, to Jake Freivald, the owner of westorange.info. (That website is currently down due to increased traffic, not at all surprisingly.) West Orange's letter seems to have taken the position that westorange.info was likely to confuse people into believing Freivald's site was affilated with the township and/or its website. But Freivald's lawyer, Stephen Kaplitt, suggested that nobody was likely to confuse his client's "rudimentary website" (cost $3.17) with the "virtual masterpiece" that is westorange.org (cost said to be upwards of $35,000).

But that was only when he got to the part of his response that he said he would have sent, "had you intended for your letter to be taken seriously" in the first place. "Obviously [the letter] was sent in jest," Kaplitt wrote, "and the world can certainly use more legal satire." (Amen to that.) But just in case the writer was serious, Kaplitt also noted that geographic domain names have been repeatedly been found not to be protected marks, "especially when claimed by government or municipal authorities," as was the case here.

He had additional legal arguments as well, which he outlined before concluding, "But of course, only a humorless suit would have sent such a response to your literary gag gift." Buzzfeed has the whole letter, which is definitely worth reading. (When asking for authority supporting the town's demand, Kaplitt also mentions "those voluminous Township playground rules no one pays attention to," which I am about to go look up for Odd Law Project purposes. Bonus points for that.)

As to whether it is the "best response ever," Eric Turkewitzpointed out, I think correctly [but Scott Greenfield gets Twitter credit for being first], that no response letter is ever likely to equal the one sent in 1974 by Jim Bailey, then the general counsel for the Cleveland Browns. (So good it needed to be confirmed, which I talked about here.) Bailey was responding to an angry letter from a lawyer and season-ticket holder who noted that cases of paper-airplane sailing at games had increased sharply, posing "the risk of serious eye injury and perhaps an ear injury as a result of such airplanes." The letter demanded steps be taken to terminate this activity, failing which the writer would "hold you responsible for any injury sustained by any person in my party...." Response:

There is no shame in coming in second to that.

On the other hand, it just struck me that Bailey wasn't responding to a cease-and-desist letter, or at least not the same kind sent by West Orange. So if desired, that debate can continue.

May 07, 2013

For full coverage of the Prenda Law debacle, let me refer you to Popehat, where Ken has been following it closely for a while now and has written many excellent posts on the saga (with help from, among others, CathyGellis). As a quick summary, this tale involves a group of lawyers who obtained the copyrights to a few porn movies, monitored BitTorrent to see if anyone downloaded them, and then threatened the alleged downloader with a lawsuit unless they "settled" for about $4,000. Faced with potential embarrassment and high litigation costs, most people paid up whether or not they were actually the downloader, something that was often not at all clear. If anyone did stand up to these guys, they typically dismissed the case and moved on to the next victim. But because of the number of people they sued, this scheme brought in millions of dollars.

That's the unethical part, but here's the debacle part.

This all finally got aired out in a case filed in a California federal court, where Judge Otis Wright decided to get to the bottom of things, and he discovered that it stank down there. He ordered the principals to show up and explain what was going on, which resulted in the spectacle of those who did show up taking the Fifth Amendment. (Really not a good sign when the lawyers are the ones taking the Fifth.)

Anyway, in an order issued yesterday, which is a must-read, Judge Wright found that the lawyers had conspired to commit a fraud on the court and sanctioned them. For one thing, he found, the alleged copyright holder, Alan Cooper, was not involved in the scheme—they had stolen his identity. He also found the lawyers had lied to the court about things like whether they adequately investigated before suing people (tip: you're supposed to do that), continuing to lie even in the face of possible sanctions. In fact, he found, their entire "enterprise relies on deception," a phrase that will be heard many more times in the other jurisdictions where these goons are facing sanctions. End result: an order directing them to pay $80,000 in attorney's fees, and stating that the judge would be notifying the relevant state and federal bar associations about the matter and notifying the U.S. Attorney's Office and the IRS (they haven't paid any taxes, apparently).

The word "enterprise" has a triple meaning here, actually. First, the standard meaning of a "business enterprise," which this kind of was. Second, the legal meaning of a RICO "enterprise," RICO being the Racketeer Influenced and Corrupt Organizations Act, often used against organized crime and which the judge mentioned in his order. Third, the U.S.S. Enterprise.

I don't know where the Star Trek theme of the order came from, unless it was suggested by the word "enterprise." But this is yet another reason to read the order, which starts with a quote from Star Trek II: The Wrath of Khan (I was hoping it'd be "Khaaaaaaannnnn!" but it wasn't) and then incorporates lots of Trek references.

May 01, 2013

That's one way the court described the question before it in this case (click for the full opinion):

More specifically, the plaintiffs sought an injunction against the enforcement of a San Antonio ordinance that required their dancers to wear more than before, but the court denied the request, finding that the plaintiffs' First Amendment challenge was not likely to succeed.

The opinion (by the chief judge of the court) is highly amusing, even if you aren't a particular fan of the double entendre, of which the opinion is chock full. I especially enjoyed the entirely irrelevant mention and picture of "Miss Wiggles," an exotic dancer who apparently performed (fully clothed) at the Eastwood Country Club in San Antonio in the 1960s, and who according to the court has recently passed away.

A close second to the memory of Miss Wiggles was the historical note, which I have confirmed, that from 2005 until December of last year the relevant San Antonio ordinances referred to the sort of businesses in question here as "human display establishments."

They are now perhaps more accurately, but much more boringly, called "sexually oriented businesses."

I'm not sure there's a likelihood of confusion there, but it's close enough that it's not surprising it generated a cease-and-desist letter. The surprise was that the attorney didn't feel the need to be a creep.

We are certainly flattered by your affection for the brand, [Christy Susman wrote,] but ... we also have to be diligent to ensure that the Jack Daniel's trademarks are used correctly. Given the brand's popularity, it will probably come as no surprise that we come across designs like this one on a regular basis. What may not be so apparent, however, is that if we allow uses like this one, we run the very real risk that our trademark will be weakened. As a fan of the brand, I'm sure that's not something you intended or would want to see happen....

[W]e simply request that you change the cover design when the book is re-printed. If you would be willing to change the design sooner than that ..., we would be willing to contribute a reasonable amount toward the costs of doing so. By taking this step, you will help us to ensure that the Jack Daniel's brand will mean as much to future generations as it does today.

We wish you continued success with your writing and we look forward to hearing from you at your earliest convenience.

It's not just the pleasant tone that is unusual here, it's the "demand." Rather than get all huffy and demand the books be taken off the shelves, Jack Daniel's asked that the cover be changed when (or if) there is a reprint, and actually offered to help pay for that if he was willing to change the design now. I assure you that is not something you see every day.

Certainly, the company understood the potential PR value of this kind of response, and it was right about that. It's getting lots of good publicity, and the coverage is also helping the author—I'm not sure how well it was selling before, but as of right now (Thursday) it's at #18 on the Amazon.com 100 list. Seems like people really should be buying more Jack Daniel's as a result of this (and maybe they are), but it seems like everybody wins here regardless. Smart call, whiskey maker.

For a prior example of a good way to respond to a more traditional cease-and-desist letter, see here.

July 17, 2012

I've known about this order for a while now—it was issued in a case called Hyperphrase Technologies v. Microsoft Corp. in 2003—but was surprised to note (after somebody sent it to me today) that I apparently haven't posted it here yet. It belongs on the Noteworthy Court Orders page so that's where it's going now.

The brief order concerns a motion to strike (basically an objection to a document, but "motion to strike" sounds more dramatic) that was aimed at a summary judgment motion filed by Microsoft. The motion was due on June 25, 2003, and as in most federal courts, an electronic filing anytime before midnight is considered timely. The magistrate judge describes what happened next:

In a scandalous affront to this court's deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don't know this personally because I was home sleeping, but that's what the court's computer docketing program says, so I'll accept it as true.

(Emphasis added.) Well, that is a clear violation of the court's order, and so the other side's team of lawyers sprang into action:

Microsoft's insouciance so flustered Hyperphrase that nine of its attorneys, namely [names omitted here but listed in full by the court for shaming purposes] promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one's foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft's temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

At this point you may have detected a certain amount of sarcasm and so may be able to predict the outcome of this motion, but I'll go ahead and give you the rest anyway:

Wounded though this court may be by Microsoft's four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up to seventy-two minutes later.

Having spent more than that amount of time on Hyperphrase's motion, it is now time to move on to the other Gordian problems confronting this court. Plaintiff's motion to strike is denied.

(Emphasis in original.) It is still the case that you should never miss a deadline, because you never know what a particular judge or court may do; but on the other hand, it is also a good rule of thumb to avoid being too petty.

June 25, 2012

Internet darling Charles Carreon has already amended the complaint he filed just last week, and while it's not unheard of to file an amended complaint that quickly, it does tend to encourage the belief that maybe the initial filing was not thought out all that well. The amended complaint (PDF here, courtesy of Popehat) has more words in it but I'm not sure the extra words help.

The most immediately noticeable change is that Carreon has dragged the California Attorney General into the mess, naming Kamala Harris as "a person to be joined if feasible under [Fed.] R. Civ. P. 19." Basically, Rule 19 provides that in some circumstances, a case can't go forward unless everyone who may have a meaningful interest in the case is joined as a party. Here, Carreon seems to have joined the AG because, apparently now having read the statute he originally sued under, he found a section that says a California court does not have jurisdiction to modify or terminate a charitable trust unless the Attorney General is a party. (Not sure why he is describing her as "a person to be joined if feasible" when he's already joined her, but that is only one of many mysteries here.)

The causes of action are the same as before; Carreon has just added more details, mostly about the nasty things that currently unknown people have allegedly done to him in retaliation for his threat to sue The Oatmeal. As I've said before, if this is happening, it shouldn't be. Criticizing him is fine (I'm certainly doing it), but harassing him isn't. Which is not to say that there's no humor in some of it: in addition to nastier things, Carreon alleges that somebody has been ordering Domino's Pizza deliveries to his house, and that he's been signed up for Club Nintendo and the Olive Garden Newsletter, and perhaps most dastardly at all, somebody allegedly created a profile for him at Mormon.org:

92. Plaintiff has received signup emails from all of the above companies, which are a nuisance. Plaintiff has also received a followup phone call from the Mormons, offering to personally deliver him a copy of the Book of Mormon.

Have a heart, people.

I still don't see any facts alleged that tie any of that stuff to Matthew Inman at The Oatmeal, and Inman too has asked for people not to do it. As for the claim against Inman and Indiegogo, I don't see that getting any more credible. For one thing, Carreon now claims at one point that Inman's "vile, despicable insinuations" aren't entitled to constitutional protection at all because they are "fighting words"—they're not—and because they are "commercial speech"—which they almost certainly aren't, and if they were they would still be entitled to First Amendment protection. So he's just flat wrong there. But the basic premise of this cause of action really appears to be that Carreon is mad that he was insulted, and he thinks this makes the alleged charitable motive legally invalid:

43. Inman's insult is much more than a profane witticism. It is a frank declaration of his wrongful, uncharitable motive. It is a non-sequitur that underscores his intent to create a toxic hybrid of malicious intent and "philanthropy." There is no such thing as a "philanthropic, kind-spirited way" to say "F*ck off." [He included the asterisk, although the original un-asterisked insult appears in big red letters a few lines above.] There is only one way to say it, and one purpose for saying it, and that purpose cannot be lawfully associated with tax-exempt charitable solicitation in the State of California.

But so far as I can tell, nothing Carreon cites supports that last statement. More importantly, even if it were true, he would not have standing to enforce such a rule just because he contributed to the campaign in an effort to give himself standing. His addition of the AG I think only highlights that.

Anyway, more to come. Possibly next week if and when a third amended complaint is filed.

June 19, 2012

8. Plaintiffs hereby incorporate by reference each and every other paragraph as though fully set forth herein.

9. On or about May 28, 2010, Plaintiff [name redacted] was an invitee ... at the Arby's Restaurant owned and operated by Defendant U.S. Beef Corp. and/or John Doe(s) and/or XYZ Corporation(s).

10. On or about May 28, 2010, Plaintiff ... was utilizing the urinal in the men's restroom when it caused a jet of steam to shoot forth from the urinal and burn [Plaintiff’s] genitals.

11. Plaintiffs reported the incident to an employee who responded that "we have that bathroom problem again," and "this happens when the sink in the kitchen is running."

12. Disposal of superheated water and/or steam is an inherently dangerous activity.

13. Defendants owed Plaintiffs the highest duty of care to protect them against dangerous conditions of which Arby's knew or should have known.

14. Defendants breached that duty by operating, maintaining, inspecting, repairing and managing the subject property and urinal in a careless and negligent manner. Defendant failed to exercise reasonable care to protect against dangers on the subject property and warn against such known dangers. Such dangers at the subject property include, without limitation: (a) Plumbing and/or water heating systems that violate the applicable Building, Mechanical and Plumbing code, (b) Urinal that shoots jets of scalding steam, (c) Failure to properly repair a known dangerous urinal and/or plumbing issue.

15. As a direct and proximate result of Defendants' negligence and carelessness, Plaintiff ... has sustained economic and non-economic damages, injuries and losses as set forth herein.

Emphasis added.

I enjoyed the fairly deadpan tone of Paragraph 14: "Building code violation, check. Plumbing code violation, check. Urinal that shoots jets of scalding steam, check. Failure to repair ...." Also, they were (allegedly) having this "bathroom problem again"? How long exactly did this go unaddressed? Wouldn't it be near the top of your things-to-be-fixed list?

Oh, if you're wondering whether the reference to "Plaintiffs" is a typo, it isn't. Plaintiff is married, and his wife is also a plaintiff, bringing what has to be one of the least surprising loss-of-consortium claims ever.

June 18, 2012

Here's the complaint, courtesy of Matthew Inman's lawyer, Venkat Balasubramani. Well, this is the caption. Although by filing this, the plaintiff has of course made all of his contact information public, I still feel the need to try to redact it before posting the full complaint. I'll do that shortly [update: done], but this at least proves it was filed.

It also shows that, to my continuing astonishment, he actually sued the National Wildlife Federation and the American Cancer Society. Although that may be because of this idea that he needs to "impose a charitable trust" on any funds in their possession, rather than because he claims they did anything wrong, it's still rather astonishing.

Update: Okay, I've uploaded the complaint. Click on the image to download a PDF. There are, unsurprisingly, some serious errors in this thing, in my opinion, in addition to the most glaring error of all: filing it. We (Ken and I, at least) are hesitant to provide too much analysis right now, in deference to Inman's lawyer and also in order not to educate the plaintiff as to what he has done wrong, in advance of the motion to dismiss that is looming over this complaint. This version does not include the exhibits, which evidently make the file quite ginormous. But most of you will likely be quite content with this version.